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Would you be happy if your parentage was played out in a public courtroom?

Saturday November 17 2012

In Summary

Loser: Whichever ruling emerges, Zachary may sadly not count among the winners

By GITAU WARIGI

A storyline that has an abduction of a child, supposedly by a very senior member of society, is a sure bestseller anywhere. Add in the suggestion that it happened during the Nyayo lootocracy when impunity went haywire, and everybody is sure to get wild with excitement.

Even children, so it goes, were just part of the booty looted during that era.

A Subukia couple has shocked the country with a bizarre story that reads like the Biblical tale of the son of Hebrew slaves who was brought up in Pharaoh’s household.

The melodramatic spin in the Subukia version is that the lad was not rescued drifting helplessly in the Nile marshes, but was physically kidnapped from his happy home.

And rather than let fate take its course as in the manner Moses finally found out about his roots and his destiny, the Subukia family has done the typically Kenyan thing – dashed to the courts.

Make no mistake, abduction is a very serious criminal offence. If proved, it carries a heavy mandatory jail term. But, on the flip side, it can result in a crushing defamation counter-suit if it fails the test of proof.

Playing out

Of course, I don’t want to prejudge what will eventually emerge from the courts. However, I am not sure I understand the appropriateness of playing out a boy’s (or girl’s) parentage in a public courtroom.

Does Zachary Musengi, the presumed son of the late George Saitoti, deserve his life and parentage played out in the glare of national publicity? Would you like it if you were in his situation?

Granted, the right of a child to know his or her parents supersedes everything else.

But aren’t there better ways of staking a child-custody claim, if this is what it is? What interest is being served by going public in this vouyeristic way? Are the people involved considering the boy’s self-esteem? Or his interaction with his friends?

The lad is actually now a young man who can read the newspapers and follow all the public commotion being made about him. I don’t want to imagine what he is feeling.The chorus I have been hearing is that a DNA test can put the whole matter to rest. Scientifically, yes.

Yet it is not as easy an answer as it would seem. Zachary can agree to it, and then destroy the life of one (or even both) of the women who claim him. Or he can refuse, and protect both for eternity. The choice is his.

Sometimes it is better to let go in the best interest of a child you claim to love. That is the moral of the Old Testament Solomonic story of the two women and the child they were fighting over.

Our country has a problem. One, we love spinning conspiracy theories too much. Two, we have become a very disputatious society, so much so we often don’t realise when we cross the line of decency into something else.

We have made the courts the destination for every imaginable dispute. And the courts themselves are relishing this role, sometimes without thinking through many of the issues.

Dispute resolution

As Dr Mukhisa Kituyi recently wrote, aren’t there other dispute resolution mechanisms we can fall back on when it comes to certain sensitive issues?

Assuming I am childless, adoption is a fairly straightforward and legal recourse. It wouldn’t cross my mind to try abduction, unless my motive is to get a ransom, which is a crime.

In many foreign jurisdictions, adoptions and the bureaucracy that accompanies them are kept very discreet for a good purpose: most of all to protect the child. He may never know who his biological parents were. Neither would those anonymous biological parents have to live with a lifetime blemish.

In court battles, there are winners and losers. But whichever ruling emerges in this instance, Zachary may sadly not count among the winners.